Uganda v Ntege (HCT-00-CR-SC 513 of 2019) [2022] UGHCCRD 141 (10 October 2022)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA KAMPALA HCT-00-CR-SC-513-2019**

**UGANDA ......................... PROSECUTOR**

*Versus*

**NTEGE JOSEPH .......................... ACCUSED**

# **BEFORE: THE MR. JUSTICE MICHAEL ELUBU JUDGEMENT**

The accused **Ntege Joseph, 20,** is charged with the offence of Aggravated Defilement contrary to sections 129 (3) and (4) (a) of **the Penal Code Act.**

It is alleged in the particulars of offence that on the 15th day of September 2018 at Bunga Trading Centre, Makindye Division in Kampala District, the accused performed a sexual act on Ainembabazi Elizabeth, a girl aged 13 years.

At his arraignment, the accused pleaded 'Not Guilty' thus bringing all the elements of this offence into issue.

#### **Background**

It was the case for the prosecution that on the night of the 15th day of September 2018, the accused, Ntege Joseph, who was 16 years old at the time, was in his room in Bunga Trading Centre, Makindye Division in Kampala Distrct. This room also doubled as a saloon and accommodation for the accused. The victim, Ainmbabazi Lydia Elizabeth, 15, is the daughter of Ahimbisibwe Rose who was his neighbours. At about 7.00 pm the victim and her two younger brothers Tony, 8 and Junior, 9 went to the accused persons room to play games on his mobile phone. Their mother was not at home at the time as she had travelled to Ntungamo for burial. At about 10.00 pm the accused sent the two boys home telling them that he would call them back once the phone had been charged. That he remained alone with the victim. That the accused then started touching and squeezing the victim's breasts. He placed her on his bed and pushed her skirt up to her chest and had sexual intercourse with her. At about 11.00 pm the victim's mother returned to find the two boys asleep but the victim missing from home. The mother woke the children who told her the victim might be in the toilet. The mother mounted a search including checking the toilet but did not see the victim. The accused person's door was slightly open but the mother did not think to check there. At about midnight the victim came home running. She told her mother that she had been in the toilet. After more interrogation the victim stated that she had been with the accused. She stated that he had sexual intercourse with her. The accused was immediately arrested and taken to Bunga Police post. The next day he was transferred to Kabagala Police Station. He was eventually produced before the Makindye Court and charged with Defilement.

The victim was medically examined. The examination report showed she had a ruptured hymen and a candida infection in the genitals. The rupture was less than 6 months old. She also soft tissue tenderness of the breasts and buttocks.

The accused denied this offence and called three witnesses (including himself).

The evidence for the defence is that the complainant and her children, including the victim, were neighbours to the accused. That the accused lived in a saloon which belonged to his sister. That at about 7.00 pm on the 15th of September 2018, the victim and her two brothers came to the saloon to play video games. At about 10.00 pm they all left to go home and sleep. Shortly after they had left, the victim returned saying her mother was not at home and she continued playing on the phone. A while later, the victim heard the door at her home opening and rushed out. Before long the mother of the victim and several other people came and arrested Ntege accusing him of defiling the victim. That he was taken to Bunga Police Post where he was detained. The accused person's sisters, Nanyonjo Prossy and Nakaweesa Topista, both stated that they worked in the saloon and had earlier that evening, before they went home, left the accused with the victim and her sisters in the saloon. That when the accused was taken to Police the allegation was of indecent assault. It is not clear how that allegation turned into one of defilement. That the doctor told both the mother of the victim and Nanyonjo Prossy that she was 'wide' and sexually active but had not been defiled that day.

### **Determination**

The burden of proof against an accused person lays on the prosecution. The onus was on the prosecution, as it is always on the prosecution in all criminal cases, to prove the guilt of the accused beyond any reasonable doubt. [See **Ojepan Ignatius vs. Uganda Cr. App. No. 25 of 1995 (unreported)]**

The prosecution must prove all the essential elements of the offence charged. In the case of Aggravated Defilement the ingredients are:

- i. That the victim was below the age of 14 years - ii. That there was a sexual act performed on the victim - iii. That it was the accused responsible.

## **a) The first element is whether the victim was below the age of 14 years at the time that this offence was committed.**

In her testimony the victim told the court that she was 15 years old on the 25th of May 2022 the date she testified. Her mother stated that the victim was born on the 27th of August 2006. It was clear from her appearance that victim was about 15 years old and must certainly have been below fourteen years of age in 2018. The defence does not dispute the age of the victim.

It is therefore my finding that the first element has been proved beyond reasonable doubt.

I will examine the next two elements jointly. They are:

- **b. The second element is whether a sexual act was committed on the victim.** - **c. Whether the accused persons committed this offence (Participation)**

The victim in this matter said that she knew the accused well and referred to him as Jose. The accused also stated in his defence that the victim was his friend. All defence witnesses appear to know the victim well and referred to her by her names Becca. PW 1, the victim's mother stated that her daughter was Becca but had been baptised Elizabeth because the church had rejected the name Rebecca.

The victim told the Court that she was with the accused in his room. The accused admits that the victim was with him late at night on the 15th of September 2018. The victim states that when her brothers went to sleep, the accused placed her on the bed and had sexual intercourse with her. It should be noted that the complainant noted that the door of the saloon where the accused lived was open throughout the time they were searching for the victim.

In his defence the accused denies having sexual intercourse with the victim.

He states the victim's mother came with several people and accused him of defiling the victim. That when he was taken to police the allegations made were of indecent assault.

These assertions appear to be truthful. When she was cross examined and her police statement read to her the complainant, Ahimbisibwe Rose, admitted that although she was not the one who wrote the statement, what was read out to court was correct. In her Police statement, the complainant said that, 'immediately we went to Bunga Police Post and opened up a case of Indecent Assault'.

The victim told the court that the accused touched her breasts. The doctor also found she had soft tissue tenderness tallying with this narration.

This court has also considered that the victims was examined the very next day. The doctor made a finding of defilement. However, that conclusion appears based more on the history and narration by the victim than on his medical investigation. DW 2 states that she was present when the doctor narrated his findings to the mother. That he told her the victim was sexually active but there of was no evidence of recent sexual intercourse although the hymen had been ruptured within the last 6 months.

Indeed, the PE 1 the PF 3 makes no mention of evidence of a sexual encounter the previous night.

The question now is whether this evidence can sustain an allegation of a sexual act as defined in Section 129 of **the Penal Code Act.**

Under S. 129 (7) (b) of **the Penal Code Act** a sexual act includes the unlawful use of any object or organ by a person on another person's sexual organ.

This court is also follows the guidance in **Okethi Okale vs R [1965] EA 555** where it was held**,**

In our view, it is the duty of the trial judge, both when he sums up to the assessors and when he gives judgment, to look at the evidence as a whole. We think it is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it. Indeed, we think that no single piece of evidence should be weighed except in relation to all the rest of the evidence.

I have carefully considered the evidence here. While the victim insists there was sexual intercourse, the evidence here casts doubt on whether there was penetrative sexual intercourse that night in view of the doctor's narration to the mother of the victim, that there had been no sexual intercourse the previous night, although the victim was sexually active. While the medical report is clear the hymen was ruptured, it is silent on whether there was recent sexual activity. This appears to corroborate the testimony of DW 2 who stated that she heard the doctor tell the mother that the victim had not had sexual intercourse the previous night. It is also unlikely that the door of the saloon would have been left open as noted by the victim's mother. The accused has maintained that the victim was with him but he did not have sexual intercourse with her.

It is trite law that the burden of proof in criminal cases rests upon the prosecution which must establish all the elements of the offence beyond reasonable doubt. Where any doubt arises, it must be resolved in favour of the accused person. In this case, the evidence does not appear to meet the test to prove a sexual act. That means one key element has not been proved to a standard beyond reasonable doubt. There was also no particular evidence produced to prove the minor and cognate offence of indecent Assault.

The lady assessor advised this court to acquit the accused person.

Where any of the essential elements of an offence have not been proved, then a court cannot find a person guilty of the offence charged.

In view of the above, and in agreement with the lady assessor, I find **Ntege Joseph** '*Not Guilty'* of the offence of Aggravated Defilement contrary to section 129 (3) and (4) (a) of **the Penal Code Act,** and hereby acquit him.

Dated at Kampala this 10th day of October 2022

**..............................................................**

**Michael Elubu**

**Judge**